Ng Kin Wai v. The Dental Council of Hong Kong
Read the full judgment text of CACV 194/2010 on BabelCite. This Court of Appeal judgment was delivered on 14 October 2011.
1. I agree with the judgment of Fok JA and the order he proposes.
Cited by 2 cases · Cites 2 cases
|
CACV 194/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 194 OF 2010 (ON APPEAL FROM THE ORDER OF THE DENTAL COUNCIL OF HONG KONG MADE ON 5TH AUGUST 2010) ________________________
________________________ BETWEEN
________________________ Before: Hon Yuen, Fok JJA and Chung J in Court Date of Hearing: 27 September 2011 Date of Handing Down Judgment: 14 October 2011 ________________________ J U D G M E N T ________________________ Hon Yuen JA: 1.I agree with the judgment of Fok JA and the order he proposes. Hon Fok JA: 2.On 5 August 2010 the Dental Council of Hong Kong found the appellant guilty of unprofessional conduct. The Dental Council ordered that the appellant should be reprimanded in respect of the offence and the order be published in the Gazette. 3.The appellant, being aggrieved by the order made in respect of him by the Dental Council under s. 18 of the Dental Registration Ordinance, Cap. 156 (“the Ordinance”), appeals to this Court pursuant to s. 23 of the Ordinance. The charge 4.At the inquiry before the Dental Council, the charge against the appellant was:
The facts 5.The appellant is a registered dentist. 6.In October 2009, he used the title “Specialist in Community Dentistry” (in English) and “社區牙科醫學專科醫生” (in Chinese) on his name cards. 7.It is a fact that the appellant is and was not included in any Specialist Register and so he was not entitled to be known as a specialist in any dental specialty. 8.In this appeal, as in the inquiry before the Dental Council, the appellant admits that in or around October 2009, he did include in his name card “Specialist in Community Dentistry” when his name was not included in the Specialist Register. 9.So far as the Specialist Register is concerned, the following facts are relevant. 10.The statutory register of specialist dentists, called the Specialist Register, was established on 30 November 2006. Since the establishment of the Specialist Register, only registered dentists whose names are included on the Specialist Register are entitled to be known as a specialist in any particular dental specialty. 11.Prior to the establishment of the Specialist Register, some registered dentists were given approval by the Dental Council to use specialist titles under an administrative scheme. However, such specialist titles under the administrative scheme were specific titles such as “Orthodontist” or “Endodontist” and the word “Specialist” was not used in any of the titles approved under that scheme. 12.When the Specialist Register was established in November 2006, the administrative scheme came to an end. Registered dentists must now apply in accordance with s. 12B of the Ordinance in order to be included in the Specialist Register. The procedure for application for inclusion in the Specialist Register is governed by s. 12B of the Ordinance. By s. 12B(1), a registered dentist who wishes to have his name included in the Specialist Register under a specialty may apply to the Dental Council, in such form and manner as may be specified by the Council, for the inclusion. By s. 12B(2), the Dental Council may not approve such an application unless the dentist satisfies certain conditions. Those conditions are set out in s. 12B(3) as being that:
By s. 12B(4), upon receipt of an application, the Dental Council must refer the application to a body known as the Education and Accreditation Committee (“EAC”) for its recommendation as to whether the dentist satisfies the conditions in sub-s. (3). 13.Before the application is approved and the dentist’s name is actually included in the Specialist Register, the applicant is not entitled to use the specialist title “Specialist in [the relevant dental speciality]”. 14.By s. 25A of the Ordinance:
A person is liable, on summary conviction of the offence under s. 25A(1), to a fine at level 6 and to imprisonment for a maximum of 3 years: s. 25A(3). 15.On 12 June 2006, the Dental Council sent a letter to dental practitioners registered in Hong Kong informing them that the Dentists Registration (Amendment) Ordinance 2006 had been gazetted and that the major amendments involved the establishment of the new EAC and the setting up of a Specialist Register to include names of those registered dentists who were qualified in various specialist fields of dentistry. The letter advised that, after the establishment of the new Specialist Register, a registered dentist with the requisite qualifications in any of the existing seven specialist fields of dentistry could apply to have his name included in the new Specialist Register by completing the relevant application form. 16.By a subsequent letter to dental practitioners, dated 19 October 2006, the Dental Council took the opportunity to report on the latest developments of a number of issues concerning the dental profession in Hong Kong. One of those issues was the Specialist Register, in respect of which the letter stated (amongst other things):
The appellant’s case before the Dental Council 17.The appellant’s defence at the inquiry before the Dental Council was that he was not aware of the need to apply for inclusion in the Specialist Register and mistakenly believed that he was entitled to use the specialist title because he had applied to add the qualification of “FCDSHK (Community Dentistry)” to his certificate of registration.[1] 18.The appellant invited the Dental Council to draw the inference that he simply made an honest mistake by referring to himself as a Specialist in Community Dentistry on his name card in October 2009. 19.On 21 May 2007, the appellant was elected a Fellow of the College of Dental Surgeons of Hong Kong in the Specialty of Community Dentistry. 20.On 11 January 2008, the appellant submitted a letter addressed to the Chairman of the Dental Council of Hong Kong, the material parts of which read as follows:
It would appear that the original Diploma in Community Dentistry issued by the College of Dental Surgeons of Hong Kong was submitted with that letter since there is a copy of that diploma on which a chop with the words “Original Seen” has been applied. 21.On 25 January 2008, the appellant wrote a further letter addressed to the Secretary of the Dental Council, the material parts of which read as follows:
22.By letter dated 11 April 2008, the Dental Council wrote to the appellant to confirm that the qualification “FCDSHK 1993” shown in his entry on the General Register of Dentists had been changed to “FCDSHK (Community Dentistry) 2007” and in addition the practising addresses that appeared against his entry on the General Register of Dentists had been updated to include the branch registration address at 368 King’s Road. The letter enclosed a duplicate Certificate of Registration, certified copies of that certificate and an official receipt for the fee paid. 23.On 2 March 2009, the College of Dental Surgeons of Hong Kong wrote to the appellant to confirm that he was appointed a member of the Specialty Board in Community Dentistry 2009 with a term of office from 1 January 2009 to 31 December 2009. The appointment was on the recommendation of the Chairman of the Specialty Board in Community Dentistry. On 9 February 2010, the Dental Council renewed that appointment for a further period of 12 months with effect from 1 January 2010. 24.On 2 September 2009, the College of Dental Surgeons of Hong Kong wrote to the appellant to appoint him as an Examiner for 2009 FCDSHK (Intermediate) Examination in Community Dentistry. 25.All this, contended the appellant, led him to believe that his name was included in the Specialist Register. His legal representative[2] submitted to the Dental Council that the appellant’s belief in this regard was honest and, furthermore, that it was based on reasonable grounds. 26.The appellant supported this contention by reference to an email from Professor Edward C.M. Lo, the Chairman of the Specialty Board in Community Dentistry of the College of Dental Surgeons of Hong Kong, dated 3 February 2010. In that email, Professor Lo noted from the Dental Council website that only two members of the Specialty Board were listed in the Specialist Register of Community Dentistry. He encouraged other members of the Specialty Board to apply to be included in the Specialist Register and concluded:
The Decision of the Dental Council 27.In its Decision, the Dental Council noted that the facts that in October 2009 the appellant used cards bearing the title specialist and that his name was not included in the Specialist Register at the material time were admitted. The Dental Council also noted the defence was that the appellant was not aware of the need to apply for inclusion in the Specialist Register and that he mistakenly believed he was entitled to use the specialist title. 28.The appellant did not give evidence at the inquiry and the Dental Council noted that the significance of this was that there was no direct evidence of what he had in mind when he made his application to add the extra qualification FCDSHK (Community Dentistry) to his Certificate of Registration in January 2008. This was therefore a matter of inference for the Dental Council. 29.At paragraphs 9 to 11 of its Decision, the Dental Council said:
30.The Dental Council went on to address the defence of honest mistake raised by the appellant. At paragraphs 12 to 16 of its Decision, the Dental Council said:
The appellant’s case on appeal 31.The argument of the appellant on this appeal is that the Dental Council’s decision that he was guilty of the charge of unprofessional conduct was fundamentally flawed because the Dental Council did not make any decision as to his mental state before reaching its conclusion (in paragraph 11 of its Decision) that he was guilty. 32.Mr Gerard McCoy SC, leading counsel for the appellant, submitted that there were two stages to the charge, namely, first, whether the facts in the charge were established, and, secondly, whether the appellant was guilty of the offence charged on the facts proved. 33.In this regard, reliance was placed on regulation 28(3) of the Dentists (Registration and Disciplinary Procedure) Regulations, Cap. 156A (“the Regulations”) (being the regulations made under s. 29(1C)(d)(v) of the Ordinance) which provides:
34.As to the first stage, Mr McCoy accepted that the facts were admitted, namely that the appellant had used name cards describing him as a specialist at a time when his name was not included in the relevant Specialist Register. However, it was Mr McCoy’s submission that, at the second stage, it fell to the Dental Council to determine how and why that had happened. To do so, he submitted, it was relevant and necessary for the Dental Council to reach conclusions on his mental state since the offence of unprofessional conduct was not a strict liability offence. It was only when it was established why the appellant had done what he did that the Dental Council could determine if he was guilty of unprofessional conduct. 35.Mr McCoy’s short point was that there was a duty on the part of the Dental Council to determine the issues raised by the parties and, unless those issues were determined, the inquiry was not a “due inquiry” as that term is defined in s. 2 of the Ordinance, namely:
(The reference in the above definition to s. 29(1C)(d)(v) of the Ordinance is a reference to the power granted to the Dental Council to make regulations providing for the procedure to be followed in relation to enquiries held by it under the Ordinance.) 36.The necessity for a due inquiry, as defined, is because it is only after such an inquiry that the Dental Council may be satisfied that a registered dentist has been guilty of unprofessional conduct so that it may then exercise its discretion to make an order against him. By s. 18(1) of the Ordinance, it is provided that:
37.As regards paragraphs 12 to 16, Mr McCoy submitted that the Dental Council was in fundamental error in holding that an honest belief was no defence if there were no reasonable grounds for such belief. He relied on R v Bernhard [1938] 2 KB 264 at 271 and R v Skivington [1968] 1 QB 166 for the proposition that the defence of honest mistake may be unfounded in law or in fact. Discussion 38.Distilled to its essential point, the issue raised by this appeal is whether the Dental Council was required, in determining whether the appellant was guilty of the charge of unprofessional conduct, to make findings as to his mental state at the time he committed the acts forming the basis of the charge. 39.In my view, there was no such obligation on the part of the Dental Council in this case. 40.The charge against the appellant was one of unprofessional conduct. It was not a charge that included, as an element of the offence, a particular mental element. Although mere negligence does not equate to unprofessional conduct[3], depending on the circumstances, unprofessional conduct may occur, as Mr McCoy candidly accepted in the course of his submissions, even when a dentist has acted with an honest belief that he was entitled to act as he did. Whether the conduct is unprofessional is left to the Dental Council to determine, it being the relevant professional body given the task of determining whether that conduct falls within the definition of “unprofessional conduct” in s. 18(2) of the Ordinance, namely:
41.Unprofessional conduct must therefore be contrasted with the offence, under s. 25A of the Ordinance, of falsely pretending to be or taking or using the name or title of a specialist. I have set out the provisions of s. 25A(1) above. As that sub-section makes clear, the mental element of that offence requires the dentist to have acted willfully or falsely. 42.Here, the appellant was not charged under that section of the Ordinance. Instead, the appellant was charged with unprofessional conduct which, as I have indicated above, does not include any particular mental state as an element of the offence. 43.Thus, in the present case, it was open to the Dental Council, in my opinion, once the facts on which the charge of unprofessional conduct were admitted, to proceed to determine whether, on those facts, the appellant was guilty of unprofessional conduct regardless of whether or not he honestly believed he was not obliged to apply for his name to be included in the Specialist Register before using the specialist title. 44.And this they did in paragraphs 9 to 11 of the Decision, which I have set out above. 45.It was plainly open to the Dental Council to take the view that a dentist should have familiarised himself with the relevant legislation concerning professional registration and the use of titles. The legislation has restricted the use of the title specialist to those whose names are included on the Specialist Register. Professional titles are important and members of the public are likely to rely on the expertise implied by those titles in choosing a dentist and submitting themselves to treatment by that dentist. Here, regardless of whether the appellant held the honest belief asserted, it was a matter for the Dental Council to decide if his admitted failure to understand and comply with the registration requirements amounted to unprofessional conduct. As the Dental Council stated, in the first sentence of paragraph 16 of the Decision:
46.The obligation of the Dental Council under regulation 28(3) of the Regulations is only to determine those issues raised by the parties that are relevant to the inquiry before it. Here, the mental state of the appellant when he used his name card describing himself as a specialist was not material to the question of whether that conduct was unprofessional. 47.So far as Mr McCoy’s complaints about paragraphs 12 to 16 of the Decision are concerned, here too I am against him. 48.The charge being one of unprofessional conduct, and not one of wilfully or falsely pretending to be or using the title of specialist, there was no requirement on the part of the Dental Council to determine, on the question of guilt, whether to accept the appellant’s claim to have acted under an honest mistake. This is reflected in the first sentence of paragraph 16 of the Decision, to which I have already referred. 49.However, as the Dental Council noted, it addressed this question for “the sake of completeness” and rejected the appellant’s claim that he acted under an honest belief since there were no reasonable grounds for that belief. I have set out above the reasoning of the Dental Council in this regard and, for my part, I can see no proper basis on which to fault that reasoning. The cases of R v Bernhard (supra.) and R v Skivington (supra.) were concerned with the specific defence of a claim of right as a defence to larceny and are distinguishable on the basis that a necessary ingredient of the offence was an intent to commit larceny. Here, by contrast, no specific intent was required to be proved for the charge of unprofessional conduct to be established. 50.Mr McCoy submitted that the Dental Council’s approach was inconsistent in that on sentencing, despite rejecting the assertion that the appellant acted under an honest mistake in paragraphs 12 to 16 of the Decision, it gave him “credit for [his] honest admission of the facts” (paragraph 19 of the Decision) and gave him the “benefit of [the] doubt” (paragraph 21 of the Decision). 51.I do not accept this discloses any inconsistency. 52.In paragraph 19 of the Decision, the Dental Council was simply reflecting the fact that the appellant had admitted the underlying facts that he used the name card with the title specialist at a time when his name was not included in the Specialist Register. Giving credit for that does not imply any requirement to believe his assertion of having made an honest mistake. 53.The benefit of the doubt in paragraph 21 of the Decision was not the benefit of the doubt as to whether he held the honest belief asserted but rather was as to whether “he may not appreciate the importance of such legal requirement” to be registered in the Specialist Register before using the title specialist. And as the Dental Council noted, future offenders would not be given the same benefit since their decision would serve to warn them of the importance of complying with the legal requirement. 54.Although the appellant’s skeleton submissions contained submissions suggesting the Dental Council had erred in respect of the burden and standard of proof, these were not pursued by Mr McCoy in his oral submissions and I am satisfied that there is no substance in these points. Conclusion 55.For these reasons, I would dismiss the appeal with costs to the Dental Council. Hon Chung J: 56.I agree.
Mr Gerard McCoy SC and Mr Daniel Hui, instructed by Messrs Cheung, Chan & Chung, for the Appellant Ms Juliana Chow, instructed by the Department of Justice, for the Respondent [1] The acronym FCDSHK stands for Fellow of the College of Dental Surgeons of Hong Kong. [2] A partner of the firm of solicitors acting for the appellant below (which was not the same firm acting for him on this appeal). [3] See Dr Young Yau Yau, Cecilia v The Dental Council of Hong Kong, unrep., CACV 150/2007 at §§47 and 48 per Stock JA (as he then was). |
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under CACV 194/2010